Court Reverses Child Pornography Conviction

by Kemp Brinson

The Second District Court of Appeals has reversed the conviction of Lakeland’s Danny Lynn Parker, who was convicted of possession of child pornography. The Ledger has a good write-up. The photos at issue were of adults engaged in sexual conduct with photographs of the heads of minors attached to their bodies.

The opinion is fairly detailed and includes a dissent by Judge Morris.

The case is interesting because Mr. Parker was a copycat of John Stelmack, the Scott Lake Elementary principal who won an appeal from similar convictions. The difference between the two cases is that in the Stelmack images, the models were not engaged in sexual acts, they were merely posing. In three of the Parker images, the models were engaged in sexual acts.

The issue that the panel (and the parties) could not agree upon is whether these three photos contained “simulated sexual intercourse by a child” as required for a conviction. The majority relied on a U.S. Supreme Court case and found that, because it is obvious that the child was not engaged in any sexual conduct, the images did not depict simulated sexual intercourse by a child:

“Simulated” is “the explicit depiction of conduct . . . which creates the appearance of such conduct and which exhibits any uncovered portion of the breasts, genitals, or buttocks.” § 827.071(1)(i). The construction of “simulated” sexual conduct is explained in United States v. Williams, 553 U.S. 285, 297 (2008), where the Supreme Court construed the word “simulated” as applied to a “visual depiction” of a minor engaging in “sexually explicit conduct” under 18 U.S.C. § 2252A(a)(3)(B)(ii).

According to the Court, “a reasonable viewer [must] believe that the actors actually engaged in that conduct on camera” and “although the sexual intercourse may be simulated, it must involve actual children.” Williams, 553 U.S. at 297. Williams‘ analysis leads us to the same conclusion regarding Mr. Parker’s depictions; no child engaged in simulated conduct and no reasonable viewer could believe so. (Opinion at 5-6).

Judge Morris did not address Williams in his dissent, instead arguing that, no matter how crude the images, they clearly depicted sexual activity designed to appear to be that of a minor. I think the case was correctly decided, but the dissent has a point: why should a conviction rest on the artistic abilities of the perpetrator? What does that have to do with it?

I think the difficulty here is, quite simply, the lack of a clear statute. I would imagine someone is going to call for some sort of amendment to the law to make it tougher. Will they narrowly tailor the amendments to address this specific situation? Or will they attempt to cast a wide net and write in even more ambiguity?

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